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In re Rardin4/14/2005
ress any issue respecting father's fitness. Instead, the court rejected the "viability" of father's "plan," terms unfamiliar to the text of ORS 419B.504. The court's emphasis on the question of viability turned solely on father's lack of a relationship with child and, ultimately, the court's conclusion that father could not re-establish a relationship after child had turned three. Based on the foregoing, we conclude that father has raised a "colorable claim of error," viz., whether the trial court adhered to ORS 419B.504 and this court's cases in terminating father's parental rights.
The judgment terminating father's parental rights also referred to the standard set out in ORS 419B.506. Under ORS 419B.506, a parent's rights may be terminated if the court finds that the parent has "failed or neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the child * * * for six months prior to the filing of a petition." It is undisputed that DHS limited father's contact with child between April 2002 and the filing of the petition in October 2002. Father argues that DHS prevented him from establishing a relationship with child during that period by, for example, forbidding him from having contact with child. Father's argument may establish a plausible defense to parental termination under ORS 419B.506. We therefore conclude that father's argument is "colorable" on that ground, as well.
For the foregoing reasons, we conclude that the Court of Appeals erred in denying father's motion to file an untimely notice of appeal under ORS 419A.200 and in dismissing the appeal.
The decision of the Court of Appeals is reversed and the matter is remanded to the Court of Appeals for further proceedings.
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